Work in Fishing Convention, 2007 (No. 188) - South Africa (Ratification: 2013)

Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

The Committee notes the Government’s first report on the application of the Work in Fishing Convention, 2007 (No. 188). Following a first review of the information and documents available, the Committee draws the Government’s attention to the following issues. The Committee notes the efforts undertaken by the Government and the social partners to implement the Convention. If considered necessary, the Committee may come back to other matters at a later stage.

Impact of the COVID-19 pandemic. The Committee notes with deep concern the impact of the COVID-19 pandemic on the protection of fishers’ rights as laid out in the Convention. In this regard, the Committee refers to the resolution adopted by the Governing Body in its 340th Session (GB.340/Resolution) concerning maritime labour issues and COVID-19 disease, which calls on Member States to take measures to address the adverse impacts of the pandemic on fishers’ rights.

General Issues. Implementation measures. The Committee notes the Government’s indication that the South African Merchant Shipping Act (MSA) was amended in October 2015 to give effect to the Convention. The Committee further notes that a draft Merchant Shipping Bill 2020 has been published for comments before its adoption in order to replace the existing MSA. It notes the Government’s indication that draft regulations are submitted to the Department of Transport for promulgation. The Committee requests the Government to provide a copy of any measures adopted to give full effect to the Convention. The Committee notes that section 356bis of the MSA provides that, subject to the provisions of this Act, the Convention, has the force of law in the Republic. It also notes that the text of the Convention, including Annexes I to III, is reproduced in the eighth schedule of the Act. The Committee requests the Government to explain how it ensures the full application of the detailed requirements of the Convention in case of inconsistencies between the provisions the Convention, which have force of law, and the national laws and regulations in force. The Committee notes that the Government’s report does not provide information on the consultations carried out by the competent authority with the representative organizations of employers and workers concerned, and in particular the representative organizations of fishing vessels owners and fishers, where they exist. The Committee requests the Government to provide detailed information on the consultations carried out with the representative organizations concerned, as required by the Convention.

Articles 2 and 3. Scope of application. Exclusions. The Committee notes the Government’s indication that section 2, paragraph 1, of the MSA, defines “seafarer” as “any person (except a master, pilot or cadet) employed or engaged in any capacity as a member of the crew of a ship”. It also notes that, while masters and cadets are not included in the definition of “seafarer” for the purposes of the MSA, a number of provisions of this Act apply to cadets or masters, or include a specific indication that the section concerned also applies to these categories of workers. For example, section 101 of the MSA, provides that requirements on medical examination of crews prior to engagement shall apply, with the changes required by the context, to the engagement of a master. The Committee recalls that Article 1(e) of the Convention provides that fisher means “every person employed or engaged in any capacity or carrying out an occupation on board any fishing vessel, including persons working on board who are paid on the basis of a share of the catch but excluding pilots, naval personnel, other persons in the permanent service of a government, shore-based persons carrying out work aboard a fishing vessel and fisheries observers”. The Committee requests the Government to provide detailed information on how it ensures that the measures adopted or envisaged in order to implement the Convention apply to all fishers within the meaning of the Convention, including masters and cadets. The Committee notes that section 3, paragraph 10, of the MSA provides that, unless otherwise indicated, only the provisions of sections 9 (5), 223, 259, 264, 313, 343ter, 355A, 356 and 356ter, read with section 2, shall apply to: a) every owner and master of any vessel, and every user, employer and employee; b) all crew on board a vessel who have entered into a contract of employment with the master or with the owner or operator of such vessel, or any person who in the case of a vessel of less than 100 gross register tons can be regarded as crew on board such vessel (…). The Committee notes that the Government’s report contains references to sections 90 to 189 of the MSA on engagement, discharge, repatriation, payment, discipline and general treatment of seafarers. The Committee further notes that section 3, paragraph 10, of the draft Merchant Shipping Bill 2020 reproduces the same provision of the MSA. The Committee requests the Government to clarify the scope of application of the MSA and to explain how it ensures that it applies to all fishers and all fishing vessels engaged in commercial fishing operations covered by the Convention. The Committee notes that several sections of the MSA, including section 3, provide that the competent authority may decide exemptions, modifications and restrictions concerning the application of this Act. The Committee requests the Government to provide detailed information on any exemptions, modifications and restrictions decided that could affect the full implementation of the Convention.

Article 4 of the Convention. Progressive implementation. The Committee notes the Government’s indication that progressive implementation was required for medical examinations of fishers working on under 25 gross tonnage vessels as no legislative requirement existed. It further notes the Government’s information that draft Merchant Shipping (Small Vessels Medical) Regulations have been submitted to the Department of Transport for promulgation. The Committee recalls that, where it is not immediately possible for a Member to implement all of the measures provided for in the Convention owing to special problems of a substantial nature in the light of insufficiently developed infrastructure or institutions, the Member may, in accordance with a plan drawn up in consultation, progressively implement all or some of the following provisions (Article 4). Noting that the Government has not provided a copy of the draft Merchant Shipping (Small Vessels Medical) Regulations, the Committee requests it to provide information on: 1) any measures adopted to give effect to Articles 10 and 11 of the Convention for fishers working on vessels under 25 gross tons; and 2) details about the plan for the progressive implementation and the consultations which have taken place in this connection.

Article 5 and Annex III. Basis of measurement used. The Committee notes the Government’s indication that length, as provided for in current legislation, has been used for the purpose of the application of the Convention. Length has also been used in draft legislation to give effect to the Cape Town Agreement, 2012. The practice is that both length and gross tonnage appear on the vessels safety documents. However, the Committee notes that the MSA and several regulations mentioned in the Government’s report use gross tonnage as basis of measurement. The Committee recalls that member States shall, for the purpose of the Convention, use length (L) as the basis for measurement. The competent authority, after consultation, may decide to use length overall (LOA) in place of length (L) as the basis for measurement, in accordance with the equivalence set out in Annex I. Gross tonnage may not be used as a basis for measurement except for the implementation of Annex III and under the conditions specified (Article 5). The Committee requests the Government to indicate the measures taken to ensure full conformity with Article 5 of the Convention.

Article 9, paragraphs 3 to 5, of the Convention. Minimum age. Hazardous work. The Committee notes that the Government has not provided information on the implementation of Article 9, paragraphs 3 to 5 of the Convention. The Committee notes that Regulations on hazardous work by children in South Africa, adopted on 15 January 2010, include the prohibition for persons under 18 years of: (i) work involving exposure to a hazardous substance; (ii) work in a confined space; (iii) work at a height of more than 5 metres above the floor; or (iv) work involving the lifting of heavy weights. However, these Regulations do not contain provisions that deal expressly with work on board fishing vessels. The Committee recalls that the minimum age for assignment to activities on board fishing vessels, which by their nature or the circumstances in which they are carried out are likely to jeopardize the health, safety or morals of young persons, shall not be less than 18 years, and that, only as from the age of 16, these activities may be authorized by national laws or regulations, or by decision of the competent authority, after consultation, on condition that the health, safety and morals of the young persons concerned are fully protected and that the young persons concerned have received adequate specific instruction or vocational training and have completed basic pre-sea safety training (Article 9, paragraphs 3 to 5). The Committee requests the Government to explain how it ensures that no person under the age of 16 years is assigned to activities on board fishing vessels, which are likely to jeopardize their health, safety or morals. The Committee requests the Government to provide the list of the types of such activities on board fishing vessels, determined by national laws or regulations, or by the competent authority, after consultation (Article 9, paragraph 3).

Articles 13 and 14. Manning and hours of rest. The Committee notes that, concerning the regular periods of rest of sufficient length to ensure safety and health, the Government refers to section 93(l) of the Merchant Shipping (Safe Manning, Training and Certification) Regulations, 2013, which provides that the master and owner shall take account of the danger posed by fatigue of seafarers, especially those whose duties involve the safe and secure operation of that ship. In preventing fatigue, owners shall take into account the guidelines provided by the Authority. The Committee requests the Government to provide a copy of these guidelines and to provide detailed information on how it ensures that full effect is given to Article 13 (a). The Committee also notes that paragraph 2 of section 93 of the Merchant Shipping (Safe Manning, Training and Certification) Regulations, 2013, provides that all persons who are assigned duty as officer in charge of a watch or as a rating forming part of a watch and those whose duties involve designated safety, prevention of pollution and security duties shall be provided with a rest period of not less than: (a) a minimum of 10 hours of rest in any 24-hour period; and (b) 77 hours in any 7-day period. The Committee recalls that Article 14, paragraph 1 (b) provides that for fishing vessels regardless of size remaining at sea for more than three days, after consultation and for the purpose of limiting fatigue, the competent authority shall establish the minimum hours of rest to be provided to all fishers, that shall not be less than: (i) ten hours in any 24-hour period; and (ii) 77 hours in any seven-day period. The Committee further notes that draft Merchant Shipping (Safe Manning, Training and Certification) Regulations, 2020, have been published for comments. The Committee notes that section 93, paragraph 2, of these draft regulations does not extend to all fishers the scope of application of measures relating to the minimum rest period. The Committee requests the Government to provide information on any measures adopted or envisaged to give effect to Article 14, paragraph 1 (b) with respect to all fishers working on board fishing vessels at sea for more than three days.

Article 16. Fisher’s work agreement. Content. The Committee notes that section 102, paragraph 3, of the MSA provides for the particulars to be contained in the agreement with the crew. However, it notes that the same section does not include all the particulars specified in Annex II. The Committee notes that the Government has provided a model contract of employment for seafarers and fishers working on registered and licensed commercial vessels of less than 100 gross tons, in terms of section 102 (1) of the MSA. The Committee requests the Government to indicate how it is ensured that, in accordance with Annex II, the particulars to be contained in the fisher’s work agreement include: the fisher's family name, date of birth or age, and birthplace; the place at which and date on which the agreement was concluded; the name of the employer, or fishing vessel owner, or other party to the agreement with the fisher; the conditions of the termination of the agreement; and the minimum periods of rest, in accordance with national laws, regulations or other measures.

Article 18. Fisher’s work agreement. Copy provided to the fisher. The Committee notes that section 103(c) of the MSA provides that when the crew is first engaged, the agreement shall be signed in duplicate, and one agreement shall be delivered to the proper officer and the other shall be retained by the master. The Committee notes the Government’s indication that the competent authority has informed the fishing industry by Marine Notice that fishers must have their copy of the agreement. Recalling that Article 18 of the Convention provides that a copy of the fisher's work agreement shall be provided to the fisher, the Committee requests the Government to provide a copy the relevant Marine Notice and to adopt the necessary measures to give full effect to this provision of the Convention.

Article 20. Fisher’s work agreement. Signature of the owner. The Committee notes that section 102(1) and (2) of the MSA provides that the master of every South African ship shall enter into an agreement on behalf of the employer with every seafarer whom the master engages to serve in that ship; and that the agreement shall be signed by the master before any seafarer signs it. The “employer” is defined in this Act as any person, including the owner or master of a vessel, who employs any person or provides work for him/her on a vessel and who remunerates that person or expressly or tacitly undertakes to remunerate him/her, except as provided otherwise by regulation. The Committee recalls that Article 20 provides that it shall be the responsibility of the fishing vessel owner to ensure that each fisher has a written fisher's work agreement signed by both the fisher and the fishing vessel owner or by an authorized representative of the fishing vessel owner. Recalling that any signatory of the agreement other than the owner should produce a signed “power of attorney” or other document showing that he/she is authorized to represent the owner, the Committee requests the Government to indicate how it ensures that full effect is given to Article 20.

Article 21. Repatriation. The Committee notes that, while various provisions of the MSA relate to repatriation (e.g. sections 114 and 140 dealing with termination of service before the expiration of the engagement period ; section 116 concerning change of ownership; and sections 154 and 155 relating to distressed seafarers), these provisions do not cover all the circumstances provided under Article 21, paragraph 1. The Committee notes that section 114, paragraph 3 of the MSA provides for an exception to the entitlement to repatriation in the case of a seafarer who is not a South African citizen or a citizen of a treaty country (other than the Republic) and who was engaged at a port out of the Republic and discharged at a port outside the Republic. The Committee also notes that section 114, paragraph 2 of the MSA provides that the owner may invoke a “reasonable cause” to be discharged from the obligations related to repatriation. The Committee recalls that Article 21, paragraph 2 provides that the cost of the repatriation referred to in paragraph 1 of this Article shall be borne by the fishing vessel owner, except where the fisher has been found, in accordance with national laws, regulations or other measures, to be in serious default of his or her work agreement obligations. The Committee notes that section 111 of the draft Merchant Shipping Bill 2020 contains relevant provisions that are in line with some of the requirements of the Convention. The Committee requests the Government to adopt the necessary measures to ensure that all fishers on a fishing vessel that flies the South Africa’s flag, regardless of their nationality, are entitled to repatriation in the circumstances provided under Article 21, paragraphs 1 and 2. In relation to section 114, paragraph 2, the Committee also requests the Government to provide information on provisions in national laws or regulations or other measures or applicable collective agreements setting out the procedure to be followed and the standard of proof to be applied before a fisher can be found to be in “serious default of his or her work agreement obligations”. Noting that the Government has not indicated the maximum service period on board after which a fisher is entitled to repatriation and the destinations to which fishers may be repatriated, the Committee requests the Government to explain how it gives effect to Article 21, paragraph 3.

Article 22. Recruitment and placement. The Committee notes the Government’s indication that the Merchant Shipping (Seafarer Recruitment and Placement) Regulations 2017 have been adopted to give effect to the Maritime Labour Convention, 2006 (MLC, 2006), and apply to any seafarer recruitment or placement service that recruits or places seafarers on ships to which this Convention applies. The Committee notes the Government’s indication that these regulations will be amended to include fishers. The Committee requests the Government to adopt the necessary measures in order to give full effect to Article 22. It also requests the Government to provide information on the number of recruitment and placement services that are operating recruitment and placement of fishers in South Africa and on the number of fishers that are placed or recruited through these services.

Articles 25, 26 and 28; Annex III. Accommodation. The Committee notes the Government’s indication that the Construction Regulations, 1968, as amended, and the Crew Accommodation Regulations, 1961, as amended, are giving effect to the detailed requirements of Annex III. Regulations have been drafted and submitted to the Department of Transport for promulgation to give effect to the Cape Town Agreement, 2012 with respect to the requirements of the Torremolinos Protocol. The Committee notes that, in application of section 356bis of the MSA, and subject to the provision of this Act, the Convention has the force of law in the Republic. The Committee further notes that eighth schedule of the MSA includes the full text of the Convention, with its Annex III on fishing vessel accommodation. The Committee requests the Government to explain how it ensures the full application of the detailed requirements of the Convention on accommodation in case of inconsistencies between the provisions of Annex III of the Convention, which have force of law, and the Regulations mentioned above. The Committee also requests the Government to provide information on any measures adopted or envisaged in order to implement Articles 25, 26 and 28 of the Convention.

Articles 25 and 27. Food. The Committee notes that section 156, paragraph 1, of the MSA, provides that the master of a South African ship of more than 100 gross register tons shall furnish provisions to every seafarer who does not furnish his own provisions, in accordance with the prescribed scale. The Committee also notes the Government’s indication that draft amendments to the Merchant Shipping, (Provisions) Regulations, 1961 are awaiting promulgation since 2007. The Committee recalls that Article 27 provides that each Member shall adopt laws, regulations or other measures requiring that: (a) the food carried and served on board be of a sufficient nutritional value, quality and quantity; (b) potable water be of sufficient quality and quantity; and (c) the food and water be provided by the fishing vessel owner at no cost to the fisher. However, in accordance with national laws and regulations, the cost can be recovered as an operational cost if the collective agreement governing a share system or a fisher's work agreement so provides. Noting that section 120 of the draft Merchant Shipping Bill 2020 contains relevant provisions that are in line with the requirements of the Convention, the Committee requests the Government to adopt the necessary measures to give full effect to Articles 26 and 27 of the Convention.

Articles 34 to 37. Social security. The Committee notes the Government’s indication that a legislation has been drafted and submitted to the Department of Transport for promulgation to give effect to the requirements of the Convention on social security. It further notes the Government’s indication that South Africa offers various social security benefits which are extended to all citizens including fishers. The Committee recalls that Article 34 of the Convention provides that each Member shall ensure that fishers ordinarily resident in its territory, and their dependants to the extent provided in national law, are entitled to benefit from social security protection under conditions no less favourable than those applicable to other workers, including employed and self-employed persons, ordinarily resident in its territory. The Committee requests the Government to describe in detail the social security benefits granted to fishers, including fishers working on foreign-flagged vessels, ordinarily resident in the South African territory. The Committee also requests the Government to indicate the measures adopted to implement Articles 34 to 36 of the Convention.

Articles 40 to 44. Compliance and enforcement. The Committee notes the Government’s indication that South Africa has a Safety Survey regime where all commercial fishing vessels are surveyed at least once a year. After the survey inspection by a qualified surveyor, a Notice of Completion of Survey, with any non-conformities, is handed to the skipper or the owner. Once the non-conformities, including checks on the requirements of the Convention, have been attended to, the competent authority issues a Local General Safety Certificate (LGSC) valid for one year. This LGSC is the valid Certificate in South Africa. The Government also indicates that the competent authority initiated an ad hoc survey regime, where vessels are inspected at any time during the period of validity of the LGSC. Part of these inspections are checks on the requirements of the Convention and include interviewing crews on working and living conditions as well as reviewing worker’s agreements. In the first year, 116 ad hoc inspections took place and findings were recorded and communicated to the fishing industry by way of a Marine Notice. The Committee takes note of the relevant information provided by Marine Notice n°5 of 2020 on the ad hoc inspections of South African-flagged fishing vessels in 2019. The Committee also notes that Regulations 5.1.3 and 5.1.4 of the MLC, 2006, on certification and inspection of ships, are implemented by specific Maritime Labour Certificate and Declaration of Compliance Regulations, 2017, which are not applicable to fishing vessels. While noting this information, the Committee requests the Government to provide a copy of the legislation, regulations or any other measures adopted to give effect to Articles 40 and 41 of the Convention. The Committee also requests the Government to indicate if it has authorized any recognized organizations to carry out inspections and issue documents pursuant to Article 42 of the Convention. The Committee notes that section 162 of the MSA provides that if a seafarer of a South African ship considers a) that the provisions or water for the use of the seafarer are at any time of bad quality or deficient in quantity; (b) that the crew accommodation is unsanitary or is not in accordance with the regulations; or (c) that in any other respect the conditions under which the seafarer is living on board ship are not of a reasonably good standard, he or she may complain thereof to the proper officer, who shall investigate the complaint or cause it to be investigated. The Committee recalls that Article 43, paragraph 1 of the Convention provides that a Member which receives a complaint or obtains evidence that a fishing vessel that flies its flag does not conform to the requirements of the Convention - and not only to the food, accommodations and living conditions on board requirements - shall take the steps necessary to investigate the matter and ensure that action is taken to remedy any deficiencies found. The Committee also notes that section 154 of the draft Merchant Shipping Bill 2020 provides for a mechanism for bringing complaints, which only refers to breaches of MLC, 2006 requirements. The Committee requests the Government to provide information on any measures adopted to give full effect to Article 43 of the Convention.